Jharkhand High Court

Tileshwar Kumar @ Nanka vs The State Of Jharkhand on 18 November, 2022

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 3274 of 2021

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1.Tileshwar Kumar @ Nanka, aged about 41 years, son of Parmeshwar Saw

2.Malti Devi, aged about 30 years, wife of Tileshwar Kumar @ Nanka, both are residents of village Babhanbay (Masipirhi), P.o. Hazaribagh, P.S.Muffasil, District Hazaribagh ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.Abhay Prasad, son of Ram Lochan Prasad, resident of Village Babhanbay, P.O. Hazaribagh, P.S. Muffasil, District Hazaribagh ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Ashok Kumar Singh, Advocate For the O.P.No.2 :- Mr. Sanjay Kumar Pandey No.2, Advocate For the State :- Mr. Vineet Kumar Vashistha, Spl.P.P.

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6/18.11.2022 This petition has been filed for quashing of the entire

criminal proceeding arising out of Hazaribagh Muffasil P.S. Case No.276

of 2019, corresponding to G.R.Case No.1160 of 2020, registered under

sections 341, 323, 406, 420, 504/34 of the I.P.C., pending before learned

Chief Judicial Magistrate, Hazaribagh.

The complaint case was filed alleging therein that the

complainant namely Abhay Prasad, son of Ram Lochan Prasad, resident

of village Babhanbay, P.O. Hazaribagh, P.S. Muffasil, District Hazaribagh

and the petitioners are residing in different villages but they are known to

each others and the complainant has plywood shop at Guru Govind Singh

Road, Hazaribagh and he was also engaged in furniture work and it is

alleged that on 10.08.2015, the petitioner no.1 has taken plywood and

furniture of amount of Rs.59,648/- saying that he will pay the amount

within a couple of months. After lapse of time given by the petitioner

no.1 the complainant saying his condition asked for his amount but the

petitioner no.1 keep avoided continuously and he has not paid the said

amount. It is further alleged that on 08.06.2017, the complainant

suddenly seen the petitioner no.1 when he was returning his house after

closed his shop and requested to the petitioner no.1 to return his amount

but the petitioner no.2 said that he will not pay the amount and

threatened him to implicate in false case. Thereafter some persons came

there and requested to both the parties and send their house. It is

further alleged that by the petitioners in false rape case the O.P.no.2 shall

be implicated and will be sent to the jail. Hence, the complainant has

filed the complaint petition before the learned Chief Judicial Magistrate,

Hazaribagh against the petitioners on 12.06.2017 and thereafter on

13.11.2019 the same was forwarded to Muffasil Police Station for

registration of FIR and investigation of the case.

The learned counsel for the petitioners submits that

maliciously the complaint case has been filed which has been sent by the

learned court under section 156(3) Cr.P.C. The FIR was registered and

investigation has been completed and charge sheet has been submitted

against the petitioners and the learned court has taken cognizance. He

submits that the investigation was not carried out in the right direction.

He further submits that the petitioners have filed two cases one F.I.R and

one complaint case against the O.P.No.2 and in retaliation the O.P.No.2

has filed the present case against the petitioners. He further submits that

there is allegation of not returning the amount which is the subject

matter of civil case and the criminal case has been lodged. On this

ground, he submits that entire criminal proceeding may kindly be

quashed.

The learned counsel for the O.P.No.2 submits that police

has investigated the matter and charge sheet has been submitted and

looking into the materials on record, the learned court has taken

cognizance and this Court at this stage may not interfere with the matter.

Mr. Vashistha, the learned counsel for the respondent State

submits that the charge sheet has been submitted and looking into the

paragraphs of the counter affidavit as well as charge sheet the learned

court has taken cognizance.

In view of the above facts and the submissions of the

learned counsels appearing for the parties, this Court has gone through

the materials on record and finds that in the complaint there is allegation

of implicating the O.P.No.2 in false case of rape which has come in

paragraph nos. 8, 9 and 10 of the complaint and even for the sake of

argument, the argument of the learned counsel appearing for the

petitioners is admitted that for recovery of the amount the case has been

filed, the allegation at paragraph nos.8,9 and 10 suggest that there is

threatening on behalf of the petitioners to O.P.no.2 of implicating in false

case. Thus, only on that ground, when the matter is of civil nature the

criminality has been shown, the entire proceeding cannot be quashed.

Had there been the case that there is no criminality is made out, the

Court usually interfere with it because of the reason that for civil case

criminal case has been filed, however, in the case in hand, criminality is

also made out. It is well settled that if criminality is made out and in civil

case and both are made out both the case can go together as has been

held in the case of "Medchl Chemicals & Pharma (P) Ltd. v. Biological E.

Ltd.", (2000) 3 SCC 269. Paragraph no.15 to 19 of the said judgment is

quoted hereinbelow:

"15. In the matter under consideration, if we try to analyse the guidelines as specified in Shivalingappa case can it be said that the allegations in the complaint do not make out any case against the accused nor do they disclose the ingredients of an offence alleged against the accused or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against the accused? In the present case, the complaint as noticed above does not, however, lend credence to the questions posed. It is now well settled and one need not dilate on this score, neither do we intend to do so presently that the allegations in the complaint will have to be accepted on the face of it and the truth or falsity of which would not be gone into by the Court at this earliest stage as noticed above:

whether or not the allegations in the complaint were true is

to be decided on the basis of the evidence led at the trial and the observations on this score in the case of Nagpur Steel & Alloys (P) Ltd. v. P. Radhakrishna ought to be noticed. In para 3 of the Report this Court observed: [SCC (Cri) p. 1074, para 3)] "3. We have perused the complaint carefully. In our opinion it cannot be said that the complaint did not disclose the commission of an offence. Merely because the offence was committed during the course of a commercial transaction, would not be sufficient to hold that the complaint did not warrant a trial. Whether or not the allegations in the complaint were true was to be decided on the basis of evidence to be led at the trial in the complaint case. It certainly was not a case in which the criminal trial should have been cut short. The quashing of the complaint has resulted in grave miscarriage of justice. We, therefore, without expressing any opinion on the merits of the case, allow this appeal and set aside the impugned order of the High Court and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of it in accordance with law expeditiously."

16. Be it noted that in the matter of exercise of the High Court‟s inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of court. The Criminal Procedure Code contains a detailed procedure for investigation, charge and trial, and in the event, the High Court is desirous of putting a stop to the known procedure of law, the High Court must use a proper circumspection and as noticed above, very great care and caution to quash the complaint in exercise of its inherent jurisdiction. Recently, this Court in Trisuns Chemical Industry v. Rajesh Agarwal6 observed: (SCC pp. 689-90, paras 5-9) "5. The respondent‟s counsel in the High Court put forward mainly two contentions. The first was that the dispute is purely of a civil nature and hence no prosecution should have been permitted, and the second was that the Judicial Magistrate of the First Class, Gandhidham has no jurisdiction to entertain the complaint. Learned Single Judge has approved both the contentions and quashed the complaint and the order passed by the Magistrate thereon.

6. On the first count learned Single Judge pointed out that there was a specific clause in the memorandum of understanding arrived at between the parties that disputes, if any, arising between them in respect of any transaction can be resolved through arbitration. The High Court made the following observations:

„Besides supplies of processed soyabean were received by the complainant Company without any objection and the same have been exported by the complainant Company. The question whether the complainant Company did suffer the loss as

alleged by it are matters to be adjudicated by the civil court and cannot be the subject-matter of criminal prosecution.‟

7. Time and again this Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions (vide State of Haryana v. Bhajan Lal and Rajesh Bajaj v. State NCT of Delhi).

8. In the last referred case this Court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations: (SCC p. 263, para 10) „10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions.‟

9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v. Bhajan Lal."

17. On a careful reading of the complaint, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 415, 418 and 420 cannot be said to be totally absent on the basis of the allegations in the complaint. We, however, hasten to add that whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact they "are not mutually exclusive but clearly coextensive and essentially differ in their content and

consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import". (vide Pratibha Rani v. Suraj Kumar) (SCC p. 383, para 21)

18. Mr Mishra, the learned Senior Advocate for the respondents herein being the accused persons, strongly relied upon the decision of this Court in the case of Dr Sharma‟s Nursing Home v. Delhi Admn. wherein this Court observed: (SCC p. 747, para 3) "We find that both the learned courts have rested their findings on deception only and did not go into the question whether the complaint and its accompaniments disclosed the other essential ingredient of the offence under Section 420 IPC, namely, dishonest inducement."

Mr Mishra relying upon Dr Sharma case also contended that Section 24 IPC has defined the word "dishonesty" to mean a deliberate intent to cause wrongful gain or wrongful loss. It has been the specific case of the complainant that from the beginning of the transaction there was a definite intent on the part of the accused persons to cause wrongful loss to the complainant. This aspect of the matter, however, has not been taken note of by the learned Single Judge. The decision of this Court in Dr Sharma case thus does not lend any assistance to Mr Mishra in support of quashing of the criminal complaint. Some other decisions have also been cited but we do not feel inclined to refer to the same except one noted above since they do not advance the case of the respondents in any way whatsoever.

19. Considering the factual aspect of the matter, we unhesitatingly state, however, that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. We, thus, without expressing any opinion on the merits of the case allow the appeal and set aside the impugned order of the High Court and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of the same in accordance with the law with utmost expedition. Be it clarified however that observations as above in this judgment be not taken as an expression of any opinion of ours."

Moreover, the learned court has sent the matter under

section 156(3) Cr.P.C to register the F.I.R and pursuant thereto, the F.I.R

was registered and the investigation was completed and charge sheet

has been submitted against the petitioners and thereafter the learned

court has taken cognizance. On perusal of the cognizance order dated

16.10.2020, it transpires that the learned court looked into the F.I.R, the

charge sheet, the relevant paragraph of the case diary and looking the

materials on record, it has taken cognizance, the order taking cognizance

is well reasoned order. In a case pursuant to police investigation, when

the charge sheet is submitted, in the case instituted on the police report

the learned magistrate is only required to be satisfied that there are

sufficient grounds for proceeding against the accused and such an order